Alternatives To Health And Welfare Deputyships

As set out in our previous blog, Health and Welfare Deputyships are rare, with most applications being rejected by the Court of Protection. If your application is rejected, what is the alternative?

Where a person lacks capacity and is unable to make decisions concerning their Health and Welfare or grant a Lasting Power of Attorney (LPA) in respect of those decisions, an individual may apply to act as Health and Welfare Deputy on behalf of that person. A Health and Welfare Deputy is able to make decisions concerning a person’s health and welfare, including decisions related to the below:

The powers available to the Court of Protection are extensive, and the terms of each Deputyship will vary depending on the circumstances as to what the Court of Protection finds necessary and appropriate in those circumstances. The above decisions form a significant part of a Protected Party’s life, and the Court of Protection’s preferred approach is to deal with each issue individually. This is why Deputyship applications are often rejected, and instead, applicants should be encouraged to apply for the Court of Protection to make a best interest decision for the circumstances arising in the application.

Instead, therefore, the preferred approach is for applicants to apply in relation to the matter in question. By way of example, a common matter of dispute will be where the Protected Party should live, whether at home or a care home, and who is able to visit the Protected Party.

In such cases, where the involved parties are unable to reach an agreement, a party should apply seeking the Court of Protection’s decision. The Court of Protection will then hear evidence from the parties involved and obtain expert evidence in order to place them in a position to make a best interest decision in respect of the Protected Party. The Court of Protection will then make a decision and will often set a date for the matter to reappear before them at a later date so they can re-assess the position and confirm the decision made remains in the best interests of the Protected Party. This approach allows the Court of Protection to review specific matters in depth and make a best interests decision, whilst avoiding the need for that decision to be made by a named Deputy only, therefore offering greater protection.

Planning ahead

In order to prevent such disputes arising and the need for the Court of Protection’s involvement, which will inevitably cause further delay, an individual can plan ahead to make the decisions before they are unable to. This can be done by: